Comments by Jurors: New Trial Material?

• Jurisdiction: Colorado,United States
• Citation: Vol. 28 No. 5 Pg. 55
• Pages: 55
• Publication year: 1999

28 Colo.Law. 55 Colorado Lawyer 1999.

1999, June, Pg. 55. Comments by Jurors: New Trial Material?

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55

Vol. 28, No. 5, Pg. 55

The Colorado Lawyer
June 1999
Vol. 28, No. 6 [Page 55]

Specialty Law Columns
The Civil Litigator
Comments by Jurors: New Trial Material?
by Fotios M. Burtzos

Trying to figure out what jurors will find important and how they arrive at the decisions they make is probably the most difficult part of a civil litigation practice. There is no established formula or method that is guaranteed to provide clear guidance to the practitioner as he or she begins the process of determining what evidence to highlight to the jury. Attorneys, litigants, and judges are often surprised by jurors, not only because of the verdicts they sometimes reach, but also by their explanations of how they arrived at their verdicts

Jury verdicts must be unanimous.1 Even when they are however, as evidenced by the signatures of all of the jurors on the verdict form and, possibly, by their oral affirmance on polling by the court, losing litigants sometimes move for new trials based on comments by some or all of the jurors as to their deliberations, or as to what they thought was important in deciding the case. Colorado law does allow comments by jurors about their deliberations to be used to vacate their verdict, but only as to whether extraneous prejudicial information or any outside influence was improperly brought to bear on any juror. An analysis of applicable law is best illustrated by the use of a hypothetical case

Hypothetical Case

Paula Plaintiff sued Danny Defendant for bodily injuries sustained in a motor vehicle accident that took place on a winding rural road in Douglas County. Ms. Plaintiff claimed that Mr. Defendant hurriedly pulled out in front of her from a side road and caused a collision. Mr. Defendant claimed that he pulled out in a normal manner and that the road is so curved at the spot where the accident took place that there was no way he could see that Ms. Plaintiff was on the roadway until he had pulled out. He blamed the accident on poor roadway design and lack of visibility. Mr. Defendant did not designate anyone as a negligent non-party as allowed by statute.2

After a five-day trial, the jury returned a verdict finding no negligence on the part of Danny Defendant. Six days after the verdict, Ms. Plaintiff's counsel initiated a telephone conversation with one of the jurors. He was told that the first vote taken by the jurors was 5-1 in favor of the plaintiff and that the jury foreperson was the lone vote for the defendant. The foreperson explained to the other five that the place where the accident had happened was almost identical to the area near her home (four miles from the accident site). The foreperson further explained that, based on her experience driving on the sharp curves near her home and on her "feeling" that no one in the county government ever "cared" about the road by her home, she felt that accidents like this were solely caused by poor road design.

The juror with whom Ms. Plaintiff's counsel spoke also stated that, on three occasions prior to the case being submitted to the jury for deliberations, the foreperson was overheard telling another juror that "this week is a total waste of time."

Finally, the juror explained that all of the jurors had misread the instruction regarding deliberations3 and mistakenly believed that they had to reach a verdict the day the case was submitted to them. Thus, when it became obvious after six hours that the foreperson would never change her mind, the five jurors who wanted to vote for the plaintiff changed their votes, simply in order to render a verdict "on time."

After obtaining an affidavit from the juror confirming the items mentioned to him on the telephone, counsel for Paula Plaintiff filed a motion for a new trial, alleging jury misconduct. Specifically, the motion alleged that (1) the verdict was tainted by extraneous information (the foreperson's use of the roadway near her home and her feeling about the county's lack of concern about this roadway to decide this case), (2) improper deliberations took place (the foreperson's telling another juror that the week of trial was a total waste of time), and (3) the verdict was the result of a misunderstanding of the deliberation instruction (believing that a verdict had to be rendered the day deliberations began).

Under this hypothetical, is the trial court required to hold an evidentiary hearing on the motion, and does the motion allege sufficient facts to warrant a new trial?

Discussion

The first matter to consider is whether counsel for Ms Plaintiff is even allowed to speak with the juror regarding deliberations. In a state court case, the jurors are advised that they can discuss the case with counsel for the parties if they choose, but...